S.P. v. Knox County Board of Education

S.P., next friend of M.P., T.P., next friend of M.P., and D.H., next friend of E.E., Plaintiffs,v.KNOX COUNTY BOARD OF EDUCATION, KNOX COUNTY, And TENNESSEE DEPARTMENT OF EDUCATION, Defendants.

POPLIN, JUDGE

MEMORANDUM AND ORDER

REEVES, CHIEF UNITED STATES DISTRICT JUDGE.

Plaintiffs
allege that Knox County has a policy and practice of busing
children with epilepsy from schools without nurses to schools
with nurses for administration of the medication Diastat.
Plaintiffs contend this practice violates the Individuals
with Disabilities Education Act (IDEA) and incorporated state
law, Title II of the Americans with Disabilities Act (ADA),
and Section 504 of the Rehabilitation Act. Defendants moved
for summary judgment on plaintiffs' claims. The court
granted defendant Tennessee Department of Education's
(TDOE) motion as to a violation of Tenn. Code Ann. §
49-50-1602 and dismissed the claim on the basis of Eleventh
Amendment immunity. In all other respects the motion of TDOE
was denied as was the motion for summary judgment filed by
Knox County and the Knox County Board of Education (KCBE).

This
matter is back before the court on TDOE's motion for
reconsideration.

I.
Positions of the Parties

A.
TDOE

TDOE
asks the court to reconsider its denial of TDOE's motion
for summary judgment in which the court found that the IDEA
provides a remedy for actions “unrelated to the denial
of a free and appropriate public education” (FAPE).
TDOE maintains that the IDEA provides no such remedy.

B.
Plaintiffs

Plaintiffs
argue they are using both the incorporated Tennessee law and
the zoned preferences of the IDEA to bring an access case and
TDOE must enforce the IDEA and incorporated state law
concerning zoned school access.

II.
Background

During
the 2015-16 and 2016-17 school years, E.E. and M.P. were
enrolled in two different elementary schools in the Knox
County school system. Both children were prescribed the
anti-seizure medication Diastat. The Knox County Board of
Education (KCBE) had in effect a policy that required Diastat
to be administered only by a nurse.

KCBE's
2008 “Health Services Seizure Disorder Protocol”
states that “Students with protocol, which requires
Diastat rectal medication or oxygen administration, will
attend a school (transferred if necessary) where there is a
full-time on-site nurse.” The Protocol was updated in
2013, but no change was made to the Diastat administration
“transfer if necessary” language. The Protocol
was updated for a third time in June of 2016. The mandatory
language requiring administration of Diastat by a nurse
remained, but the “transfer if necessary”
language was removed.

Plaintiffs
allege that KCBE required students with a Diastat
prescription to transfer to a school with a full-time nurse
if their zoned school was not staffed with a full-time nurse,
per the Protocol. Plaintiffs contend this violates Tenn. Code
Ann. § 49-50-1602(g)(7): “An LEA [local education
agency] shall not assign a student with epilepsy or other
seizure disorder to a school other than the school for which
the student is zoned . . . because the student has a seizure
disorder.” KCBE and Knox County state that if a student
with a Diastat prescription is zoned to attend a particular
school that does not have a fulltime nurse, they offer the
student's parents the opportunity to transfer to a school
with a nurse. Alternatively, the school system would transfer
a full-time nurse to the zoned school. Plaintiffs respond
they were never offered this option.

Plaintiffs
allege that the Tennessee Department of Education (TDOE) knew
KCBE had an illegal policy to transfer students with epilepsy
to non-zoned schools and permitted it to continue. Plaintiffs
claim that TDOE violated its oversight, supervisory, and
monitoring authority over KCBE.

A.
Plaintiff M.P.

M.P. is
an eligible child with a “disability” under the
IDEA. Due to a neurological impairment, she receives special
education through an Individualized Education Plan (IEP).
M.P. was scheduled to attend kindergarten at her zoned
school, West View Elementary, for the 2016-17 school year. In
March 2016, prior to the beginning of the school year, an IEP
meeting was held for M.P. Her parents did not inform school
officials of the Diastat order until after the meeting
concluded. Another meeting was planned for May 2016. In April
2016, the principal at Fort Sanders Educational Developmental
Center called M.P.'s father about the Diastat
prescription. She stated that Diastat required a full-time
nurse to be at the school and that West View Elementary did
not have a full-time nurse. She further stated that KCBE had
a policy where students with Diastat were transferred to a
school with a full-time nurse if their zoned school did not
have a nurse. She did not say anything about being able to
request that a school nurse be installed at West View, just
that transfer was required. M.P.'s father examined the
2013 Health Services Protocol, which on its face, was
consistent with the principal's explanation. Neither the
principal, nor the Protocol, said anything about a
student's ability to request that a nurse be provided at
West View. M.P.'s father then met with his daughter's
neurologist and was advised the risk of ...

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